Legislative and Judicial control over the delegated legislation

Legislative and Judicial control over the delegated legislation

The Indian Constitution has established a Welfare State which mandates that the State shall legislate on innumerable activities touching human lives in order to promote the ‘maximum happiness of the maximum number of people’.
Consequently the State has to undertake legislation on a variety of subjects. In view of this increasing legislative activity, the legislatures will not find adequate time to legislate on every minute details and limit themselves to ‘policy matters and leaving a large volume of area to executives to frame rules to carry out the purposes of legislation.
Thus, the need for delegation became indispensable and it was sought to be justified on grounds of ‘speed’, flexibility and adoptability’.
The application of law to changing circumstances was made feasible through the instruments of ‘rules’ framed by the executive. It is not a surprise to find that during the years (1973-77) spanning a period of 4 years Parliament enacted 300 statutes but the rules framed by the executive exceeded 25000. This has been observed by the apex court in the Arvind Singh’s case.
Legislatures having delegated their powers, have to bear the responsibility to ensure that the delegatee shall not over-step the legitimate domain and commit a violation by exceeding or abusing the powers delegated.
Thus, the legislatures have to control the delegated legislation and if not, executives may exercise the delegated power to become a potential dictator or even becoming a parallel legislature. This legislative control over delegated legislation has become a ‘living continuity as a constitutional necessity’.
The rule of majority in democratic systems have virtually made legislative controls ineffective. A similar statement is found in Wade & Forsyth.
A more serious observation has been made by Mr. Lloyd George to the effect that ‘legislatures have no control over the executive”.
All these observations are pointers to the view that had the Parliamentary control over delegated legislature been effective, the need for judicial control would not have arisen or probably reduced to the minimum. This has not been so, hence, judicial control has become an inevitable necessity to prevent executives acting as super-legislatures or potential dictators.
Pre-constitutional control to post-constitutional judicial control found a big shift from the scrutiny of delegated legislation confined to the area of sub-delegation from British Parliament to Indian legislature and laying down a fundamental principle of delegation in the post-constitutional era which can be stated as follows:-
“Legislatures cannot delegate their essential legislative powers. Essential legislative powers relate to the determination of the policy of the legislature and of rendering that policy into a binding rule of conduct”.
In other words, delegation of legislative power can be confined to ‘non-essentials’ or subsidiary matters. Delegation of legislative powers of essential nature would be invalid. This has come as a first principle laid down in the area of judicial control and subsequently expanded to a number of rules laid down by the judiciary. These principles can be stated as follows:-

If the law is ex-facie unconstitutional it cannot be legalized by a Parent Act which is constitutional. In other words, an unconstitutional legislation cannot be legalized by a valid Parent Act;
Rules farmed violating Parent Act are illegal;
Rules framed violating any other Statute or inconsistent with any other law are also illegal and void;
Delegated legislation must be reasonable or do not suffer from unreasonableness. This has been ruled in Chandra Bhan’s case;
Delegated legislation shall not be arbitrary or suffer from arbitrariness. This is necessary to protect the “Rule of Law”;
Delegated legislation made with malfides or improper Motives are held illegal;
Forbidding sub-delegation and the powers being delegated 18 or delegatee exceeding the powers19 are equally held void;
‘Finality clauses’ in Statutes or rules made thereunder, exclusive evidence, clauses20 or ‘as if enacted clauses’21 were also reviewed on the basis of their compliance with the Justice/”>Principles Of Natural Justice and also in the Light of Art 226 and Art 32 of the constitution vesting powers in the High Courts and Supreme Court respectively. Constitutionally vested jurisdiction cannot be taken away by ordinary legislation;
‘Retrospective effect’ clauses giving effect to the law or rules with retrospective effect. Such clauses not only reverses the reasonable anticipation of the people and may also deprive people of their accrued rights;
Delegated legislation exercised being against public standards or public morality. (In this case marks sheets of the daughter of CM were altered);
Doctrines like ‘Proportionality’, legitimate expectations, and public accountability, have become grounds of Judicial Review of the law and rules framed; and
Cases have also been reviewed on the grounds of procedural ‘ultra vires’ i.e., not following the procedures which are mandatory in framing the rules;

Judicial control over the delegated legislation

Since ‘Judicial review’ forms an important feature of the basic structure of the Constitution, it cannot be taken away even by an amendment to the Constitution.

This has now raised a few problems relating to judicial control over delegated legislation, such as:

How to make the Judiciary responsible for exceeding its legitimate limits?
How to ensure that judiciary acts only in cases where the delegated legislation assumes the character of its being a super-legislatures or parallel legislature?
How to ensure that Judicial Control to preserve the ‘rule of law’ and
How to ensure proper exercise of power by Judiciary.

In the fitness of things, it would be proper to suggest that the rules laid down by the Judiciary may be codified, so as to confine its powers to the norms already laid down. It is also necessary that The Supreme Court must frame rules under Art 141, which would be law binding under Art 144 limiting its powers judiciously and not to overstep its legitimate sphere.
In other words, self –imposed rules by the supreme court may be a good solution to the problems of Judicial control being made accountable, legitimate and confined to constitutional limits to protect and preserve the Constitution and ‘rule of law’. It would be worthwhile to remember the famous observation of Justice Frankfurter which is in these words: “Judicial review is not immune against human weakness. It also must be on guard against encroaching beyond its bounds, and not the less so, since only restraint upon it is self-restraint”.
It is hoped that the apex court will frame rules relating to its power of review in the sphere of delegated legislation, so that it could serve as guidelines to all High Courts and also to the Govt., to keep in mind while framing rules as well to the legislatures, while enacting laws.
It will go a long way in preserving the constitutional powers and the rule of law in a democratic Society like ours.

Delegated legislation is a form of law-making that is delegated by Parliament to other bodies, such as government ministers or local authorities. It is used to allow for more efficient and effective law-making, as it allows Parliament to focus on the most important issues and delegate the details to those who are more expert in the relevant area.

There are a number of different ways in which Parliament can control delegated legislation. One way is through parliamentary scrutiny. This can take place through the affirmative resolution procedure, the negative resolution procedure, or select committee scrutiny.

The affirmative resolution procedure is the most rigorous form of parliamentary scrutiny. Under this procedure, a draft piece of delegated legislation must be laid before Parliament and approved by a resolution of both Houses before it can come into force. This gives Parliament the opportunity to debate the draft legislation and to amend it if necessary.

The negative resolution procedure is a less rigorous form of parliamentary scrutiny. Under this procedure, a draft piece of delegated legislation is laid before Parliament and comes into force unless a resolution is passed by either House within a specified period of time. This means that Parliament has the opportunity to reject the draft legislation, but it does not have the opportunity to amend it.

Select committee scrutiny is a form of parliamentary scrutiny that is carried out by select committees. Select committees are made up of MPs who are appointed to investigate specific areas of government policy. They can examine draft delegated legislation and make recommendations to Parliament on whether it should be approved or rejected.

In addition to parliamentary scrutiny, delegated legislation can also be subject to judicial control. This means that the courts can review delegated legislation to ensure that it is within the powers that have been delegated to the relevant body. There are a number of different grounds on which delegated legislation can be challenged in the courts, including ultra vires, rational basis review, Wednesbury unreasonableness, and proportionality.

Ultra vires means that the delegated legislation is beyond the powers that have been delegated to the relevant body. This can be either substantive ultra vires, which means that the delegated legislation is not authorized by the parent statute, or procedural ultra vires, which means that the delegated legislation was not made in accordance with the correct procedures.

Rational basis review is a test that is used to determine whether delegated legislation is rationally related to the purpose for which it was enacted. This means that the courts will consider whether there is a rational connection between the delegated legislation and the policy that it is intended to achieve.

Wednesbury unreasonableness is a test that is used to determine whether delegated legislation is so unreasonable that no reasonable person could have made it. This is a very high standard, and it is rarely used to strike down delegated legislation.

Proportionality is a test that is used to determine whether delegated legislation is a proportionate response to the problem that it is intended to address. This means that the courts will consider whether the benefits of the delegated legislation outweigh the costs, and whether there are less restrictive ways of achieving the same objective.

Delegated legislation is an important part of the UK legal system. It allows for more efficient and effective law-making, and it is subject to a number of different controls, including parliamentary scrutiny and judicial review.

What is delegated legislation?

Delegated legislation is a type of law that is made by a government body other than Parliament. It is also known as subordinate legislation or secondary legislation.

Why is delegated legislation used?

Delegated legislation is used because it allows the government to make laws more quickly and easily than if they had to go through the full parliamentary process. It can also be used to make laws that are more specific to particular areas or issues.

What are the different types of delegated legislation?

There are many different types of delegated legislation, but some of the most common include:

Statutory instruments: These are the most common type of delegated legislation. They are made by ministers or other government bodies under powers that have been given to them by Parliament.
Orders in council: These are made by the Queen on the advice of the Privy Council. They are usually used to make laws that have a significant impact on the rights of individuals or businesses.
Bylaws: These are made by local authorities. They are usually used to regulate things like planning, parking, and noise.

How is delegated legislation controlled?

Delegated legislation is controlled by Parliament and the courts. Parliament can control delegated legislation by passing Acts of Parliament that repeal or amend it. The courts can control delegated legislation by declaring it to be ultra vires, which means that it is beyond the powers of the body that made it.

What are the advantages of delegated legislation?

The advantages of delegated legislation include:

It allows the government to make laws more quickly and easily than if they had to go through the full parliamentary process.
It can be used to make laws that are more specific to particular areas or issues.
It allows the government to delegate responsibility for making laws to experts in particular areas.

What are the disadvantages of delegated legislation?

The disadvantages of delegated legislation include:

It can be used to make laws without proper scrutiny by Parliament.
It can be used to make laws that are not in the public interest.
It can be used to make laws that are difficult to understand and enforce.

What is the future of delegated legislation?

The future of delegated legislation is uncertain. Some people believe that it should be used more sparingly, while others believe that it is an essential tool for the government. It is likely that the use of delegated legislation will continue to be debated in the years to come.

Sure, here are some MCQs on the topics of delegated legislation, legislative control, and judicial control:

Delegated legislation is:
(a) legislation that is passed by the executive branch of government
(b) legislation that is passed by the legislative branch of government
(c) legislation that is passed by the judicial branch of government
(d) legislation that is passed by the people
Legislative control over delegated legislation can be exercised through:
(a) the power to veto delegated legislation
(b) the power to amend delegated legislation
(c) the power to delegate further legislation
(d) all of the above
Judicial control over delegated legislation can be exercised through:
(a) the power to declare delegated legislation invalid
(b) the power to interpret delegated legislation
(c) the power to apply delegated legislation
(d) all of the above
Which of the following is an example of delegated legislation?
(a) A law passed by the Parliament
(b) A regulation made by the government
(c) A court order
(d) A treaty between two countries
Which of the following is not an example of delegated legislation?
(a) A bylaw passed by a local council
(b) A regulation made by a government agency
(c) A code of practice issued by a professional body
(d) A directive issued by the European Union
Which of the following is the most common form of delegated legislation?
(a) Regulations
(b) Orders in Council
(c) Bylaws
(d) Codes of practice
Which of the following is the least common form of delegated legislation?
(a) Regulations
(b) Orders in Council
(c) Bylaws
(d) Codes of practice
Delegated legislation is often used because it:
(a) allows the government to respond quickly to changing circumstances
(b) allows the government to delegate tasks to experts
(c) allows the government to avoid the need to pass new laws
(d) all of the above
Delegated legislation can be subject to both legislative and judicial control. This is important because it:
(a) ensures that delegated legislation is not used to bypass the democratic process
(b) ensures that delegated legislation is not used to violate the rights of individuals
(c) ensures that delegated legislation is not used to exceed the powers that have been delegated
(d) all of the above
Which of the following is the most important safeguard against the abuse of delegated legislation?
(a) Legislative control
(b) Judicial control
(c) Public scrutiny
(d) All of the above